Nothing to Fear: Debunking the Mythical 'Sharia Threat' to Our Judicial System

[Image from report cover.] [Image from report cover.]

Nothing to Fear: Debunking the Mythical "Sharia Threat" to Our Judicial System

By : Jadaliyya Reports

[Below is the latest from the American Civil Liberties Union (ACLU).]

Nothing to Fear: Debunking the Mythical "Sharia Threat" to Our Judicial System

A Report of the ACLU Program on Freedom of Religion and Belief

Introduction

Across the country, state legislators are considering proposed laws that would limit the ability of courts to adjudicate lawsuits brought by Muslims. Proponents of these measures argue that they are necessary because so-called “Sharia law” is somehow taking over our courts. These claims are, simply put, wrong. They are based both on misinformation and a misunderstanding of how our judicial system works.

There is no evidence that Islamic law is encroaching on our courts. On the contrary, the court cases cited by anti-Muslim groups as purportedly illustrative of this problem actually show the opposite: Courts treat lawsuits that are brought by Muslims or that address the Islamic faith in the same way that they deal with similar claims brought by people of other faiths or that involve no religion at all. These cases also show that sufficient protections already exist in our legal system to ensure that courts do not become impermissibly entangled with religion or improperly consider, defer to, or apply religious law where it would violate basic principles of U.S. or state public policy.

This report examines specific court cases that have been repeatedly cited by anti-Muslim advocates as evidence of the so-called “Sharia threat.” Breaking the cases down into three categories — cases involving religious freedom claims; contracts, arbitrations, and other agreements; and public policy issues — the report provides details of each case and puts them into proper context. It does not take a lawyer or expert to see that the cases are routine legal matters and do not stand for the principles that proponents of anti-Sharia measures contend. Rather, these cases are red herrings, meant to distract from the true aim of the recently proposed Sharia bans – to denigrate an entire faith system and to deny its followers the same access to the judicial system enjoyed by citizens of other creeds.

Cases Involving Religious Freedom Claims

Our federal and state laws afford people of all faiths the right to seek relief from the courts when their religious freedom is burdened. Because religious freedom rights are at the heart of such cases, they necessarily involve some consideration of, or reference to, religion. If courts undertake these examinations carefully, without becoming improperly entangled with religion, these cases do not present cause for concern. The alternative would be that people of faith would have no judicial recourse when the government violates their religious freedom rights.

The right of religious exercise has been recognized in court cases involving a variety of contexts and faiths.One such case cited by anti-Muslim groups, Shaheed Allah v. Adella Jordan-Luster, involved a Muslim inmate’s claim that a prison violated his religious exercise rights by failing to ensure that all meat served to him was prepared in accordance with his Islamic religious beliefs. Reliance on this case as evidence of the so-called “Sharia threat,” however, is misplaced for several reasons.

First, in Shaheed Allah, the court rejected the inmate’s claim, ruling that the prison’s practice of serving pork-free meals was sufficient to accommodate his Islamic religious needs. Second, even had the court granted the inmate’s request for a religious diet, the accommodation would be no different than similar diet accommodations that have been provided across the country to, say, devout Catholic or Jewish prisoners. Indeed, religious exercise accommodations have been claimed or granted in a variety of contexts for prisoners of myriad faiths. Thus, Shaheed Allah can be considered evidence that Sharia law is “overtaking” our courts only if one believes that Muslims should be barred from asserting such claims at all.

Of course, Muslims cannot and should not be barred from asserting religious freedom claims in court; nor should courts be impeded in their ability to hear and grant these claims where appropriate under the law. Denying Muslims the same religious accommodations afforded to people of other faiths would be un-American and a complete betrayal of our core commitment to religious liberty and equality. When adjudicated within the guidelines of the First Amendment, cases involving Muslims’ right to free exercise no more threaten the imposition of Sharia law than, for example, cases involving the rights of Christians pose a “Biblical threat” to our courts.

Cases Involving Contracts, Arbitrations, and Other Agreements

Courts routinely consider cases that touch on religion in various ways, even where a religious freedom claim is not directly raised. Our judicial system has long recognized the ability of courts to consider these cases if they are able to evaluate and decide them using neutral principles of law. Singling out and prohibiting cases that happen to involve Islam, while allowing all other similar cases to proceed, would render Muslims second-class citizens and deny them equal access to the courts. Below are examples of the types of cases that proponents of anti-Sharia measures have seized on as evidence of the so-called “Sharia threat.” Once again, however, even a cursory review of the cases reveals how misguided and misinformed these individuals and groups are.

. . .

Claims Implicating Public Policy Issues

Proponents of anti-Sharia laws have seized on and misused any case involving consideration — or even the mere mention — of Islam to stoke fears that our courts are imposing religious beliefs and doctrines that are incompatible with the American way. These fears are unwarranted. Our legal system has built-in protections to ensure that courts do not improperly apply foreign, international, or religious law. Courts are already barred by the Establishment Clause of the First Amendment from becoming improperly entangled with religion when considering cases involving matters of faith, and courts may not defer to any law — religious or not — if doing so would result in an outcome contrary to public policy. A closer review of the 4 cases highlighted by Sharia ban proponents shows that our courts are following these rules when it comes to disputes involving Islamic law, either as a purely religious matter or as it relates to a foreign country’s civil legal system. Thus, these cases serve as a source of comfort and confidence that our judicial system is working as it should, and are not the harbingers of doom that anti-Sharia advocates have made them out to be.

. . .

Conclusion

When the court cases cited by anti-Muslim groups are examined more closely, the myth of the “Sharia threat” to our judicial system quickly disappears. Far from confirming some fabricated conspiracy, these cases illustrate that our judicial system is alive and well, and in no danger of being co-opted or taken over by Islam.

 

[Click here to download the full report, which includes case studies and footnotes.]

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Past is Present: Settler Colonialism Matters!

On 5-6 March 2011, the Palestine Society at the School of Oriental and African Studies (SOAS) in London will hold its seventh annual conference, "Past is Present: Settler Colonialism in Palestine." This year`s conference aims to understand Zionism as a settler colonial project which has, for more than a century, subjected Palestine and Palestinians to a structural and violent form of destruction, dispossession, land appropriation and erasure in the pursuit of a new Jewish Israeli society. By organizing this conference, we hope to reclaim and revive the settler colonial paradigm and to outline its potential to inform and guide political strategy and mobilization.

The Israeli-Palestinian conflict is often described as unique and exceptional with little resemblance to other historical or ongoing colonial conflicts. Yet, for Zionism, like other settler colonial projects such as the British colonization of Ireland or European settlement of North America, South Africa or Australia, the imperative is to control the land and its resources -- and to displace the original inhabitants. Indeed, as conference keynote speaker Patrick Wolfe, one of the foremost scholars on settler colonialism and professor at La Trobe University in Victoria, Australia, argues, "the logic of this project, a sustained institutional tendency to eliminate the Indigenous population, informs a range of historical practices that might otherwise appear distinct--invasion is a structure not an event."[i]

Therefore, the classification of the Zionist movement as a settler colonial project, and the Israeli state as its manifestation, is not merely intended as a statement on the historical origins of Israel, nor as a rhetorical or polemical device. Rather, the aim is to highlight Zionism`s structural continuities and the ideology which informs Israeli policies and practices in Palestine and toward Palestinians everywhere. Thus, the Nakba -- whether viewed as a spontaneous, violent episode in war, or the implementation of a preconceived master plan -- should be understood as both the precondition for the creation of Israel and the logical outcome of Zionist settlement in Palestine.

Moreover, it is this same logic that sustains the continuation of the Nakba today. As remarked by Benny Morris, “had he [David Ben Gurion] carried out full expulsion--rather than partial--he would have stabilised the State of Israel for generations.”[ii] Yet, plagued by an “instability”--defined by the very existence of the Palestinian nation--Israel continues its daily state practices in its quest to fulfill Zionism’s logic to maximize the amount of land under its control with the minimum number of Palestinians on it. These practices take a painful array of manifestations: aerial and maritime bombardment, massacre and invasion, house demolitions, land theft, identity card confiscation, racist laws and loyalty tests, the wall, the siege on Gaza, cultural appropriation, and the dependence on willing (or unwilling) native collaboration and security arrangements, all with the continued support and backing of imperial power. 

Despite these enduring practices however, the settler colonial paradigm has largely fallen into disuse. As a paradigm, it once served as a primary ideological and political framework for all Palestinian political factions and trends, and informed the intellectual work of committed academics and revolutionary scholars, both Palestinians and Jews.

The conference thus asks where and why the settler colonial paradigm was lost, both in scholarship on Palestine and in politics; how do current analyses and theoretical trends that have arisen in its place address present and historical realities? While acknowledging the creativity of these new interpretations, we must nonetheless ask: when exactly did Palestinian natives find themselves in a "post-colonial" condition? When did the ongoing struggle over land become a "post-conflict" situation? When did Israel become a "post-Zionist" society? And when did the fortification of Palestinian ghettos and reservations become "state-building"?

In outlining settler colonialism as a central paradigm from which to understand Palestine, this conference re-invigorates it as a tool by which to analyze the present situation. In doing so, it contests solutions which accommodate Zionism, and more significantly, builds settler colonialism as a political analysis that can embolden and inform a strategy of active, mutual, and principled Palestinian alignment with the Arab struggle for self-determination, and indigenous struggles in the US, Latin America, Oceania, and elsewhere.

Such an alignment would expand the tools available to Palestinians and their solidarity movement, and reconnect the struggle to its own history of anti-colonial internationalism. At its core, this internationalism asserts that the Palestinian struggle against Zionist settler colonialism can only be won when it is embedded within, and empowered by, the broader Arab movement for emancipation and the indigenous, anti-racist and anti-colonial movement--from Arizona to Auckland.

SOAS Palestine Society invites everyone to join us at what promises to be a significant intervention in Palestine activism and scholarship.

For over 30 years, SOAS Palestine Society has heightened awareness and understanding of the Palestinian people, their rights, culture, and struggle for self-determination, amongst students, faculty, staff, and the broader public. SOAS Palestine society aims to continuously push the frontiers of discourse in an effort to make provocative arguments and to stimulate debate and organizing for justice in Palestine through relevant conferences, and events ranging from the intellectual and political impact of Edward Said`s life and work (2004), international law and the Palestine question (2005), the economy of Palestine and its occupation (2006), the one state (2007), 60 Years of Nakba, 60 Years of Resistance (2009), and most recently, the Left in Palestine (2010).

For more information on the SOAS Palestine Society 7th annual conference, Past is Present: Settler Colonialism in Palestine: www.soaspalsoc.org

SOAS Palestine Society Organizing Collective is a group of committed students that has undertaken to organize annual academic conferences on Palestine since 2003.

 


[i] Patrick Wolfe, Settler Colonialism and the Transformation of Anthropology: The Politics and Poetics of an Ethnographic Event, Cassell, London, p. 163

[ii] Interview with Benny Morris, Survival of the Fittest, Haaretz, 9. January 2004, http://cosmos.ucc.ie/cs1064/jabowen/IPSC/php/art.php?aid=5412